Did Mark Deed Over Rights or Was He Ousted of Possession?
Mark Belli sought the partition and sale of real property located at 466 76th Street in Brooklyn, claiming that he owned a 12.5% interest and that Belli, LLC, a limited liability company of which his brother Paul Belli was the sole member, owned an 87.5% interest. The LLC interposed an answer and asserted counterclaims, to quiet title, contending that Mark had transferred his interest in the property to Paul, who then transferred his interest to the LLC, or, alternatively, that the LLC had acquired title to the property by adverse possession. Signature Bank’s predecessor in interest—New York Community Bank—to which the LLC had given a mortgage on the property, intervened in the action.
The LLC moved for summary judgment dismissing the complaint and declaring that it was the sole fee owner of the property. The Supreme Court granted the LLC’s motion. Mark appealed.
The LLC demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint and declaring that it was the sole fee owner of the property. The LLC established, prima facie, that Mark executed a deed conveying his interest in the property to Paul, who subsequently conveyed the property to the LLC. While Mark refused to affirmatively acknowledge at his deposition that the signature on the deed was, in fact, his, he also did not affirmatively deny having signed the deed, and admitted at his deposition that he had agreed to a deal which involved transferring the property to Paul. Further, the LLC submitted the affidavit and accompanying report of a forensic document examiner, who, upon comparing the signature on the deed to 16 samples known to contain Mark’s signature, concluded that it was “virtually certain” that Mark signed the deed. In opposition, Mark failed to raise a triable issue of fact as to the authenticity of his signature on the deed.
In any event, the LLC alternatively demonstrated its entitlement to judgment as a matter of law on the basis of adverse possession. Where, as here, parties held property as tenants in common, occupancy by one tenant was presumed to be possession by and for the benefit of all other cotenants, unless the possessing tenant commits acts constituting ouster, at which point, that tenant may commence to hold adversely to the cotenants. Such ouster can be actual, where a cotenant expressly communicates an intention to exclude or to deny the rights of cotenants, or, in cases where the acts of the possessing cotenant are so openly hostile that the nonpossessing cotenants can be presumed to know that the property is being adversely possessed against them, ouster can be implied. Title by adverse possession is acquired when possession is hostile and under claim of right, actual, open and notorious, exclusive, and continuous for the statutory period of 10 years after ouster.
Here, in addition to making a prima facie showing as to the elements of adverse possession, the LLC demonstrated, prima facie, acts constituting ouster, occurring more than 10 years prior to the commencement of this action. Indeed, Mark acknowledged at his deposition that by March 2004, he understood that Paul had taken possession of Mark’s “interest” in the property, “got the deed… put into his name,” and “owned” the property, actions which he believed at that time to be “illegal.” Mark also admitted that he did not receive any rental income from the property after Paul took title.
The decision of Supreme Court was affirmed.